from the no-contributory-infringement dept

It's quite a week for First Sale issues in copyright (and it's only Tuesday!). We already had the Supreme Court's non-decision stalemate on the Costco/Omega case, and now we've got another of the trifecta of first sale cases in the 9th Circuit. As you may recall, that court is considering three rather important cases concerning first sale rights, with the first one (Vernor v. Autodesk) already decided such that you no longer actually own most of the software you thought you bought.

Today, the court came out with its ruling in the MDY vs. Blizzard case, which as we noted had a really troubling district court ruling. This case was controversial because it involved a bot maker that let people automate certain tasks in World of Warcraft. Many people sided with Blizzard in this case because they just hate bots and people who use them -- but I don't think they considered the larger copyright issues raised by the original ruling, which said the bot software itself, called Glider, infringed on Blizzard's copyright. If you want a thorough understanding of how tortured the court's logic was in that case, just read William Patry's summary at the time, where he notes that absolutely nothing Glider did appeared to violate Blizzard's exclusive rights as laid out in the Copyright Act, so the judge effectively made stuff up -- saying that because using the bot violates the terms of service, it makes the "copy" of WoW (even if it was legally purchased) "unauthorized," and thus infringing. Thus, according to the ruling, Glider was responsible for contributory copyright infringement.

Thankfully, the appeals court appears to have walked back most of that part of the ruling. While it tips its cap to the Vernor decision, and says that you don't own your copy of WoW, but merely license it, it says that just because the Glider software might violate the terms of service, it doesn't mean that copyright law is automatically violated. It points out that there are lots of ways you can violate a software license that have nothing, whatsoever, to do with copyright's exclusive rights, and thus, just violating a terms of service shouldn't mean you violate copyright law. Thus, using Glider does not directly infringe on Blizzard's copyright (in this instance), and therefore, there's no contributory infringement on MDY's part, because there's no direct infringement that it could contribute to:

Were we to hold otherwise, Blizzard -- or any software
copyright holder -- could designate any disfavored conduct
during software use as copyright infringement, by purporting
to condition the license on the player's abstention from the
disfavored conduct. The rationale would be that because the
conduct occurs while the player's computer is copying the
software code into RAM in order for it to run, the violation
is copyright infringement. This would allow software copyright
owners far greater rights than Congress has generally
conferred on copyright owners.

That said, MDY still runs into trouble due to the (you guessed it) ridiculous anti-circumvention clause in the DMCA. The court finds that MDY effectively "trafficked" in circumvention tools with Glider, in getting around Blizzard's anti-bot software, called Warden. Here, the ruling gets right back to being troubling. While it discusses the Federal Circuit's ruling that said third party providers of garage door openers were not violating the DMCA by getting around anti-circumvention tools in garage opener technology, because no copyright was violated beyond the circumvention, it says it chooses to ignore that decision -- saying it doesn't believe Congress intended the DMCA to work that way. Now, it's true that this court is under no obligation to follow that ruling, it's still troubling.

There is a further discussion about exactly which parts of the DMCA are and are not violated here, which begins to get really down in the weeds, so I'll skip the discussion on that for now, but you can read the entire ruling after the jump.

from the quantum-bullshit dept

Those who rely on copyright like to do a neat little trick at times. When it's convenient, they like to claim that what they're offering is no different than a physical good. In such situations, if you make a copy, they claim that you "stole" it, and that it's "no different" that walking into a store and taking something off the shelf without paying for it. Yet, at other times, if you point out the sorts of restrictions that would lead to -- such as no control over the product post-sale -- suddenly they change their tune. You didn't buy the product, you merely "licensed" it, and thus they could post sale restrictions on things. If you buy a chair, and then build a replica yourself, that's perfectly legal. But copyright holders claim that's not the case when it comes to products covered by copyright -- because they insist that it's "licensed" not "owned."

Luckily, the courts have long pushed back on this attempt by copyright holders to extend copyright's power beyond what happens with physical goods. That's why, for example, we have a right to first sale, allowing you to resell a book. The copyright holder cannot claim that you only "licensed" the book, rather than bought it, so you are, in fact, allowed to resell it. But the law isn't entirely clear on all aspects of this, and software "licensing" is one key area where there are some problems.

A few years back, Blizzard sued the maker of a bot, the Glider bot by MDY, claiming that the software violated its copyright. Now, even many who are against abuses of copyright, emotionally started to side with Blizzard here, due to what the bot allowed: it effectively allowed cheating, by automating many repetitive tasks, to let users "level up" more quickly. But, if you get past that element, the case has important implications for copyright law, and whether or not the software you buy is really purchased... or merely licensed.

The district court ruling was incredibly problematic. Nothing the guy actually did with the bot software appears to violate copyright law. Basically, the court just decided that it didn't like what the guy did, and thus it used copyright law to shut him down, though it used rather tortured reasoning. This sets an incredibly bad precedent and seems entirely at odds with the purpose of copyright law itself.

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas--the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased.

Hopefully, the Appeals Court recognizes this. Copyright owners shouldn't be able to play a quantum game of calling something "owned" when it suits them or "licensed" at other times when it suits them.